Hearing a Child’s Voice in Parenting Matters

Are you involved in a divorce or child custody case involving abuse or neglect? An experienced divorce and child custody lawyer can guide you through the legal process to assist in exploring your options. You have one bite at the apple in the court system so make it count.

It can be important in parenting matters for a child’s voice to be heard by the court. Hearing directly from a child may be particularly relevant in cases where there are allegations of abuse. “The court shall give paramount consideration to cases involving an allegation made by a child regarding domestic violence, child abuse or neglect, or child sexual abuse in determining whether to grant a request to interview the child in chambers.” C.R.S. 14-10-126(1). There are different methods for a child’s voice to be heard. There are in camera interviews, therapist testimony, and Child and Family Investigator and Parental Responsibilities Evaluator reports and testimony. When it is desirable for a court to hear directly from a child about a parenting matter, it is possible to make a request to the court for an in camera interview. A court can interview the child privately in chambers, with or without attorneys present. It is discretionary with the court whether to allow an in camera interview. The older a child is, the more likely that a court will hear from the child. C.R.S. 14-10-126(1) governs interviews in chambers/in camera.

Upon a motion, the court may interview the child in chambers to ascertain the child’s wishes as to the allocation of parental responsibilities. The court may permit counsel to be present at the interview. The court shall cause a record of the interview to be made, and it must be made part of the record in the case. The court shall make findings in its order that explain the reason why the court granted or denied a request to interview the child in chambers. C.R.S. 14-10-126(1).

However, the record requirement may be waived if counsel is present and there is no request for a record. In re Marriage of Armbeck, 518 P.2d 300 (Colo. App. 1974). The record of the interview may also be sealed. C.R.S. 14-10-128(4).

A second method of hearing a child’s voice is therapist testimony. It is often considered better for the child and family not to place a child in the position of testifying about parents in open court. Although therapist testimony is not always desirable if the therapist is the child’s treating therapist, such testimony can be useful to share the child’s thoughts, feelings and fears and to shield the child from having to testify him or herself. It may be more important to protect the relationship of the therapist and patient however, then to have the private communications shared. The purpose of this privilege is to allow for an atmosphere of trust and confidentiality to encourage open and honest communication between therapist and patient. A therapist can also make a recommendation on what type of treatment or parenting situation may be best for the child. The is a psychotherapist-patient privilege which must be addressed and considered. This privilege protects the therapy communications from public disclosure.

Because of the psychotherapist-patient privilege, a therapist requires patient consent to testify. C.R.S. 13-90-107. The age of consent to receive therapy without parental consent is 12. C.R.S. § 12-245-203.5. This is also the age at which the child begins to hold the ability to consent to release of therapy information. See generally In re Marriage of Bochner, 537 P.3d 16 (Colo. App. 2023). However, if a parent’s involvement in the case could make the consent biased in favor of a parent, then that parent, for court purposes, may not be considered to be an appropriate consent authority. A parent can not hold the privilege when, “the parent's interests as a party in a proceeding involving the child might give the parent incentive to strategically assert or waive the child's privilege in a way that could contravene the child's interest in maintaining the confidentiality of the patient-therapist relationship.” L.A.N. v. L.M.B. , 292 P.3d 942, 948 (Colo. App. 2013) Additionally, there is no privilege for initial statements made to a mandatory reporter in cases of child abuse or neglect. C.R.S. 19-3-304.

A knowledgeable and experienced Colorado Springs divorce and child custody lawyer can guide you through Colorado Springs divorce and child custody matters by negotiating, mediating and litigating on your behalf. You can focus on moving on to a better future instead of spending your time attempting to navigate complex legal rules and procedures.

Sabra Janko from Janko Family Law has more than 20 years of legal experience and has written “the book” on Colorado divorce and family law – “Colorado Family Law With Forms”, published by LexisNexis, which you can find at https://store.lexisnexis.com/products/colorado-family-law-with-forms-skuSKU02903. Contact us at 719-344-5523 or complete our online scheduling request for a free 30-minute informational consultation.